Same-Sex Marriage is not a Transcendent Right

I was reading the San Francisco Examiner the other day, when I ran across a “Viewpoints” article by Wayne State University professor of philosophy, John Corvino (the November 10th edition, page 13). Mr. Covino was opining on the passage of Proposition 8, a proposition in California that amended the state’s constitution to define marriage as being between a man and woman only (and overturning the state Supreme Court’s recent decision to extend the institution of marriage to same-sex couples).

In essence, his viewpoint was that this was only a temporary setback. The tide is on the side of those who favor same-sex marriage, and they will ride that tide in due time. I hate to admit it, but he is probably right. Prop 8 passed by a mere 2%. That’s hardly a safe margin of victory. What’s worse, popular support for traditional marriage dropped 10% from 2000, when California voters passed a similar proposition (it passed by 62%). Given the fact that opposition to same-sex marriage is fading by an average of 1.25% each year, and given the fact that those who oppose same-sex marriage tend to be older and more religious, there is good reason to believe same-sex marriage would be approved by the electorate if put to a vote four years from now. Why? Older people die at higher rates than younger people, so the anti-same-sex marriage voting block will lose supporters at a faster rate than the pro-same-sex marriage voting block, even if no one in either camp changes their position in the future. Furthermore, religious conviction is a major reason people oppose same-sex marriage. Given the fact that religion plays a less significant role in the political views of younger Americans, and it is the largely the young who become new voters, it is unlikely that those who age-in to the social debate will object to same-sex marriage. Only a major public education campaign and/or religious revival can stop the eventual legalization of same-sex marriage in the United States.

Given the length of the above paragraph, one might think my purpose in writing this post was to evaluate the future of marriage in California. It’s not. What I found particularly interesting about Corvino’s article was the following statement:

A bare majority of California voters sent a discriminatory message: You are not good enough for marriage. Your relationships-no matter how loving, how committed, how exemplary-are not “real” marriage. But “real” marriage transcends state recognition of it. And that’s another reason why this debate will continue. Because it’s not just about what California should or should not legally recognize. It’s also about what sort of relationships are morally valuable, and why. And that’s a debate that, slowly but surely, gay-rights advocates are winning.

Corvino’s claim could not be more clear: same-sex marriage is a right that transcends human law. This is quite a claim. Rights have to be grounded in something. Rights come in two forms: those belonging to us by nature, and those given to us by those in power. The right to drive is an example of the latter, while the right to life is an example of the former. To say homosexuals have the right to marry someone of the same gender, even if the political powers that be do not wish to extend them that right is to say the right to same-sex marriage is a natural right that transcends human law, and to which human law has an obligation to conform (i.e. if human law denies homosexuals the right to marry, a moral injustice is being done). But from whence cometh this right? What is it grounded in?

It cannot be a natural right, like the right to life, the right to procreate, or the right to believe what one chooses to believe. Why? Because marriage is not a fundamental right. Civil marriage is just society’s way of managing procreation for the good of, and in the interest of society. But society is under no moral obligation to formally recognize and regulate anybody’s relationships. They do so only in their own self-interest. In fact, if they got out of the marriage business tomorrow, people would continue to fall in love, make relational commitments to one another, and continue to have children just as before. Nothing would stop them from doing so. If marriage itself is not a fundamental right, then by no means can one argue that same-sex marriage in particular is a fundamental right.

The only other source in which to ground a transcendent right is God. The problem with this is that no major religion claims God approves of homosex, yet alone same-sex marriage. It’s kind of hard to ground the right to same-sex marriage in God, when God doesn’t recognize the right!

If same-sex marriage is not a right that can be grounded in God or nature, then it is not a transcendent right. It is a legal right, and a legal right depends entirely on the will of the people to grant it.